England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT ODF JUSTICE
QUEENS' BENCH DIVISION
ADMINISTRATIVE COURT
Professor Christopher Forsyth
(sitting as a Deputy Judge of the High Court)
[2016] EWHC 216 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/5/2018

Lord Justice Simon:

Introduction

1. This is an appeal from a decision made on 9 February 2015 by Professor Christopher Forsyth ('the Judge'), sitting in the Administrative Court, in which he dismissed the claimants' claims for judicial review.
2. The appeal raises two issues: first, whether the application made by the first appellant was properly characterised as a human rights claim for the purposes of s.94(1) of the Nationality, Immigration and Asylum Act 2002; and second whether the decision on the application was void or nullified on the grounds of illegality?

Background

3. The appellants are husband and wife, and nationals of India. The first appellant (Ms Joshi) entered the United Kingdom in 2005 with entry clearance as a student. The second appellant entered the country in 2008 as a student dependent. The appellants made a number of applications for leave to remain some of which were refused and some of which were granted. They were, however, never without leave to remain. Since 2005 Ms Joshi has obtained a bachelor's degree at the London College of Fashion and a master's degree from the University of Ulster.
4. On 26 June 2014, with her existing leave to remain due to expire on 14 July 2014, she made an in-time application for leave to remain as a Tier 4 General Migrant under the Points Based System ('PBS'), in order to study for a PhD at Bradford Regional College. On 25 September 2014 the college's sponsor licence was revoked by the respondent. Ms Joshi was therefore no longer in possession of a valid 'Confirmation of Acceptance for Studies' ('CAS').
5. In a letter of 5 January 2015, UK Visas and Immigration ('UKVI') wrote on behalf of the respondent informing Ms Joshi of the decision to revoke the licence of her Tier 4 sponsor; and that consequently she no longer had a valid CAS. The letter went on to inform her that her 26 June 2014 application would be suspended for 60 days (until 6 March 2015) so that she would have 'the opportunity to withdraw [her] application, to leave the UK or obtain a new tier 4 sponsor.' The letter added that if she were successful in obtaining a new tier 4 sponsor, she should submit a request to vary the grounds of her original application. On the second page, Ms Joshi was informed, 'No further extension beyond the 60-calendar day period will be allowed. A decision will be reached on the application after the end of the 60-day period.' The letter ended: 'If you fail to submit a new, valid CAS and supporting documents within this 60-day period, then your application will be considered on the basis of the information currently available and will therefore fall to be refused.'
6. Following receipt of this letter, Ms Joshi tried to find an alternative Tier 4 sponsor: a university that would accept her for a PhD. She was unable to do so for reasons she later explained.
7. On 4 March 2015 (2 days before the expiry of the 60 days), she applied to extend her leave to remain and enclosed a number of documents in support. These included a completed FLR(O) form. She described the circumstances which made it necessary to find another sponsor. She also set out the difficulties in applying to universities as a PhD student: the time had passed for applying for the January intake, and she did not have time to submit a fully specified research proposal which was a necessary precondition. Such a proposal would normally take 4-6 months to prepare. The letter raised the additional difficulty that some graduate schools would not accept students from colleges whose tier 4 licenses had been revoked. The letter also raised the issue of her ill-health and included letters from medical sources evidencing her hypothyroidism and sinus tachycardia. The letter concluded:

Therefore, I would like to apply under other purposes not covered by the immigration law and under my rights to private and family life guaranteed by article 8 ECHR [and I] request that you grant me leave to remain in the UK for a period which you deem fit and appropriate in my circumstances.

Page 11 of the FLR(O) form included a handwritten entry:

We are unable to move to India due to my medical condition/ongoing investigation. I also want to complete my studies.

8. On 13 March UKVI wrote informing Ms Joshi that the application for permission to remain in the UK raised issues relating to the European Convention on Human Rights ('ECHR') of a complex nature which would be decided as soon as possible. The letter added that as such the application, 'fell outside our normal service standards.'
9. On 1 May UKVI wrote again, pointing out that Ms Joshi already had an outstanding application to remain as a Tier 4 student (the 26 June 2014 application), and that where a prior application had not been decided a new valid application was treated as varied and as an application for leave to remain outside the rules ('LOTR').
10. Ms Joshi did not take issue with the contents of either the 13 March or 1 May letters.
11. The decision which is subject to the first ground of appeal was contained in a letter dated 6 May 2015, although it was not served on the appellants until 11 June 2015 in circumstances that I will come to. The decision was to refuse Ms Joshi's 4 March application and to certify the human rights claim made in it as 'clearly unfounded'. The effect of such a decision was that any appeal against the refusal could not be made 'in country', see s.94(1) of the Nationality, Immigration and Asylum Act 2002. The appellants would have to leave the UK before they could appeal against the decision.
12. Surprisingly, the 6 May decision letter was not sent to the appellants. Instead, it was marked, 'served on the file.' Ms Jegarajah submitted that this was an inappropriate course. A decision should only be served 'on file' (in other words not served on an applicant) where their address is unknown, for example where he or she is an absconder. In the present case, UKVI well knew where the appellants lived. It was their correspondence address.
13. It was in these circumstances that UKVI carried out an 'enforcement visit' at the appellants' home at 6.15am on the 11 June 2015. As the Judge noted, both appellants were detained in what were plainly stressful circumstances. Taken entirely by surprise, they were served with (i) the 6 May letter refusing the 4 March 2015 application (the date on the decision letter being changed in manuscript from the 6 May to the 11 June), and (ii) a removal notice which provided that they were due for removal but not before 16 June.
14. The appellants filed a claim for judicial review while still detained, and an order was made for their release and a stay of their removal until the outcome of the application for judicial review was made by the Administrative Court.

The Judgment of the Deputy Judge

15. In a well-ordered judgment, the Judge reached a number of conclusions which can be summarised as follows. (1) The claim made by Ms Joshi in her letter of 4 March 2015 letter was a human rights claim. (2) The respondent's decision contained in the 6 May letter was a lawful response to the human rights claim. (3) The notification of the decision, and therefore the refusal of leave, took place on 11 June. (4) It was likely that the appellants were detained before they were notified of the decision refusing leave, and that consequently there was a period of time in which they were detained notwithstanding they still had leave to remain. (5) However, there were reasonable grounds for suspecting the appellants were overstayers and therefore the detention was not unlawful, see Schedule 2 of the Immigration Act 1971. (6) There was no sufficient evidence of an abuse of power such to affect the validity of the 6 May 2015 decision.

The first ground of appeal.

16. Ms Jegarajah submitted that the Judge's conclusions (1) and (2) were wrong. In her letter of 4 March Ms Joshi was simply asking for further time in which to find a Tier 4 sponsor so as to enable her to study for a PhD. It amounted to a request for leave outside the rules, but did not amount to a human rights claim. She pointed out that, at the time of the 4 March letter, Ms Joshi was not an overstayer, and submitted that the Judge was wrong in describing the 4 March letter as an implicit challenge to removal.
17. Mr Hansen pointed out that the respondent was fully entitled to treat the application in Ms Joshi's 4 March letter as an application for LOTR on human rights and/or compassionate grounds.
18. I would approach this issue on the following basis. Letters addressed to or from the respondent, or those acting on behalf of the Secretary of State, should not be treated as if they are taxing statutes or detailed commercial contracts. This is a field of law and practice which is replete with technical issues; and letters written by unrepresented litigants should not be viewed with an overparticular focus on the precise way in which they are expressed but with a view to identifying their broad intent. In other words, the Court looks at the substance and not the form of the communication.
19. Adopting this approach, it is clear that Ms Joshi was asking for more time in which to secure a Tier 4 sponsor for a PhD, but that she did so on the basis of article 8 rights, in the knowledge that once the 60-day leave period had expired, 2 days after the date of the letter and on the day that it might have been received, she could have been lawfully removed from the UK. The UKVI reasonably read the letter in that way, and wrote in the letter of 13 March saying that it was treating the application as one made under the ECHR, in other words a human rights claim.
20. The decision letter of 6 May 2015 was full, as such decisions often are. It considered the application as an application in respect of private and family life and considered whether there were exceptional circumstances which might warrant LOTR, by reason of Ms Joshi's medical conditions and her wish to study for a PhD. The conclusion was that this was a human rights claim that was clearly unfounded and should be certified under s.94(1) of the Nationality, Immigration and Asylum Act 2002. In agreement with the Judge I do not consider that this conclusion is open to challenge. It is unnecessary to say anything further about the reasoning, because it is not said that, if Ms Joshi's claim was properly characterised as a claim founded on article 8 of the ECHR, the decision is otherwise open to challenge.
21. For these reasons, I consider that the Judge was correct in his conclusions (1) and (2); and the first ground fails.

The second ground of appeal

22. The second ground of appeal is that the 6 May decision was a nullity. Ms Jegarajah's argument on appeal was advanced on a broader front than that advanced before the Judge. In summary, she submitted that UKVI deliberately decided not to inform the appellants of the 6 May decision until 11 June 2016 with the deliberate intention of denying them access to the courts; that this was an act of bad faith which was evidenced by the deliberate changing of the date of the decision letter to 11 June at the time it was served; and that there was a further abuse of power in the way in which the appellants were arrested, as if they were absconders, and then detained.
23. Mr Hansen submitted that the initial delay in service of the 6 May letter until 21 May was due to the need for its contents to be approved by the 'second pair of eyes' official within UKVI. It was then served in person due to a perceived risk of absconding. That process did not come close to constituting an abuse of power or bad faith, see for example, Webster v. Lord Chancellor [2016] QB 676 at [30]-[32].
24. As the Judge pointed out at [13] of the judgment, the events which are said to amount to rendering the 6 May decision a nullity all occurred after that date. Having considered the evidence deployed by the parties (including the internal Home Office General Computer Information Database) the Judge rejected the argument that there had been an unlawful decision to delay service of the 6 May letter.
25. At [17] the Judge said:

From my perusal of these documents (in their redacted form) and after having due regard to claimants' counsel's submissions I am unable to detect any clear evidence that significantly supports the claimants' case that there was some abuse of power affecting the validity of the decision of the 6 May 2015. There is evidence of some confusion over when that decision was served; there is evidence that the officials thought that the claimants were over stayers at a time that they were not. But there is nothing that goes to show that the decision of the 6 May to reject the application for further leave was invalid.

26. At [25]-[29] of the judgment, the Judge further analysed the position. First, since the application of 4 March was made by someone with limited leave to remain before the expiry of existing leave, by reason of ss. 3C(1) and (2)(a) of the Immigration Act 1971, leave was extended until the application was decided. Second, by s.4(1) of the Immigration Act 1971 the power to grant or vary leave had to be exercised by notice in writing 'given to the person affected'. It followed that the decision letter took effect, and leave expired, on 11 June. Until that time the appellants had leave to remain. However, as the decision contained in the 6 May letter was lawful, it brought to an end the appellants' leave to remain when served and rendered them liable to detention and removal [36].
27. So far as the events of 11 June were concerned, the Judge said this at [13]:

The officers were said to be 'extremely rude' and accused the claimants of lying when they said that they were awaiting a decision on their outstanding application. This was clearly a fraught and difficult occasion. And it is unfortunate to say the least that the occasion led to the first Claimant having two panic attacks necessitating medical treatment. But none of this touches, or can touch, the validity of the decision of the 6 May.

28. At [37] he added:

I have considerable sympathy with the Claimants. The events of the 11 June 2015 must have been most unpleasant for them. It is not clear to me that it was necessary for them to be taken into detention before they were informed that their application for further leave had been refused. But there is no escaping the fact that the decision of the 6 May was not a nullity; that means that the Claimants have no leave to remain in the UK and are liable to be removed.

29. Ms Jegarajah drew attention to a number of cases in which judges of the Administrative Court have deplored a previous practice of detaining and removing overstayers at short notice to the prejudice of their right to challenge such decisions, see for example, the observations of Silber J in R (on the application or Medical Justice) v. Secretary of State for the Home Department [2010] EWHC 1925 (Admin).
30. I would accept at least one element of Ms Jegarajah's argument: namely, that the Courts must in general be alive to the possibility of abuse of power by the executive, and particularly where the possible abuse of power is directed at those who may not have access to legal assistance to protect their legal rights. However, in the present case, the appellants were not removed. A Judicial Review claim was issued on 18 June 2015 and following a hearing on 26 June the appellants were released. They have since pursued their claim through the courts.
31. The Judge concluded that the appellants were lawfully detained on 11 June, and then went on to consider their arrest and detention at a time when they were not overstayers because the decision in the 6 May letter had not been notified. The Judge identified this period as 'a short period – to be counted in hours' in which they had leave to remain but were detained.
32. Having considered the evidence placed before him, the terms of paragraph 16(2) of Schedule 2 of the Immigration Act 1971 and the case of R (Mohammed (Shahpoor)) v. Secretary of State for the Home Department [2014] EWHC 4317, the Judge concluded that the detention during this period did not entitle them to a remedy since the UKVI officials dealing with the arrest and detention had 'reasonable grounds for suspecting' that they were overstayers, see [35].

There was a hiatus over the service of the decision of the 6 May and that is regrettable; but it is insufficient to deny the officers the protection of para 16(2) of the Schedule.

33. Ms Jegarajah did not directly challenge this conclusion, and in my view she was right not to do so. This was a matter for the Judge to consider and decide on the evidence before him.
34. For these reasons, I would dismiss the appeal.

Lady Justice Macur

35. I agree.